Article 32 Hearing
Volume 9

July 22, 1970

Robert Caverly (FBI SA)

(The hearing reopened at 0837 hours, 22 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all parties who are present at the recess yesterday are here, minus the witness, Mr. Ivory.  Counsel for the accused has a statement to make.

MR. SEGAL:  May it please the investigating officer, we are of the opinion that this morning the government intends to call Special Agent Caverly of the Federal Bureau of Investigation.
     At this time I want to renew a motion made earlier in this proceeding and that is to exclude the testimony of Agent Caverly for several reasons.  The first reason, if I may state so, sir, is that because the defense has been improperly denied access to Agent Caverly in that he has been instructed that -- by the United States Attorney for the Eastern District of North Carolina, Mr. Warren Coolidge -- not to speak with counsel for the accused.  We believe that such a procedure violates the rights of the accused under the Uniform Code of Military Justice.  In addition, sir, I want to call to the investigating officer's attention, actually a matter which you have no immediate jurisdiction over, but which bears, I think, upon my motion to exclude Mr. Caverly's testimony, and that is the position and the action of the United States Attorney for the Eastern District of North Carolina, while not within your purview, nevertheless casts a pall over the right of the government to call a particular witness, because of the actions of the United States Attorney, I feel most gravely, are in violation of the Canons of ethics for attorneys and I wish to call to the attention of the investigating officer two opinions of the Professional Ethics Committee of the American Bar Association; one being informal number 304, published page 71 of the 1957 volume of the Opinion on Professional Ethics and Grievances of the American Bar Association, which specifically says that in a capital case, no lawyer has the right to close the mouths of witnesses.  And that further Opinion Number 131 of the same Committee of the American Bar Association, again published in 1957 volume, which again specifically holds that there's an absolute right on the part of counsel to interview all witnesses and that it is improper and unethical for any lawyer to close the mouth of a witness to counsel who wishes to interview him.
     Now on the second level, sir, something which I think is clearly within the purview of the investigating officer, is the fact that we have reason to believe from our pretrial proceedings in this case and other investigations conducted by counsel for the accused that present at the time that Special Agent Caverly interviewed the accused in this case, Captain MacDonald, were one or more investigators from the Criminal Investigation Division, and we have reason to believe, sir, that one of the men present at the time of the interview by Agent Caverly was Criminal Investigation Agent Hodges; that counsel for the accused requested on 17 July the opportunity to interview several of the criminal investigators we had not been allowed to see before including specifically Mr. Hodges, and that a copy of our request was handed and delivered to Mr. Grebner, the Chief Investigator, with copies to counsel for the government and copies to the investigating officer.  That since 17 July we have not received a reply, neither in writing or orally, in regard to our request to interview these agents.  But, particularly Mr. Hodges, because his testimony clearly relates to what we anticipate is the testimony, or one of the subjects to be covered by Mr. Caverly.  It is our opinion that we are not in a position to properly cross-examine Agent Caverly, he having been precluded to us first of all by the actions of the United Stated Attorney, and secondly, we have no chance to properly cross-examine him as to what other witnesses to perhaps the same interview would have told us.  We have no way of confronting him if there are any possible inconsistencies with such facts because the other persons who are privy to the same facts that Agent Caverly, have been as of this date not made available to us.  It seems to me that the government, having in fact, created this situation by its intransigencies, refusal to let us see Mr. Caverly, its refusal to properly act on the request to interview the agents of the CID, who perhaps could clarify some of the testimony that Agent Caverly will give, so that we could, in a collateral way, learn what he's going to talk about.  It seems to me, the government taking all those positions, this investigation had only one relief that it could offer to the accused, and that is to exclude Agent Caverly at least at this time, from presenting or giving any testimony at this tribunal.

COL ROCK:  Does counsel for the government wish to reply?

CPT SOMERS:  Certainly.  It should first be pointed out that no person may be compelled to consent to an interview against his wishes, and that Mr. Caverly has personally decided, as has been pointed out before, that he would not wish to be interviewed.  Secondly, it should be pointed out that there are Federal regulations regarding the testifying and interview of investigatory agents of the United States Government.  Some of these may be found in 28 CFR at Section 16.11 through 16.14.  They make it very clear that the control of such information is very tight and belongs in the hands of the United States Attorney, and ultimately in the hands of the Attorney General of the United States.  I would like to point out further that Mr. Hodges' name has been available to the defense for some time, not a week or two weeks, but a month or two months, during which time they could have arranged to see Mr. Hodges.
     Now, nobody has ever prevented these people from speaking to investigators.  It has been requested that it be done at their mutual convenience.  I respectfully submit that the contentions of the defense are totally without merit and that their request remedy is improper and should not be granted.

CPT BEALE:  Captain Somers, let me ask you one thing.  Both Colonel Rock and myself received a copy of this particular request or statement that was addressed to Mr. Grebner.  Do you have within your knowledge what action, if any was ever taken on that?

CPT SOMERS:  I don't, no.  The letter in question, I believe, was addressed to Mr. Grebner and I don't know whether there's been any follow up on that letter either from the defense or from Mr. Grebner.  I know that the defense has been told on several occasions that it may speak to the investigators, and all it need do is arrange a time and place.

MR. SEGAL:  If I may, there's a couple of factual matters that must be made clear.  First of all, it was not until Friday, 17 July, the defense was told that it would never be permitted to interview Mr. Caverly, and Mr. Caverly is obviously the person most important to us in determining what was said in the interview, rather than going to a secondary source such as Mr. Hodges.  Secondly, and to reinforce my position that we did not know until 17 July that Mr. Caverly would not be available to us, I quote to the investigating officer, if I may, the 2d Endorsement, signed by Captain Somers, counsel for the government, under date of 27 May 1970, paragraph number 9, in which he says, "Mr. John W. Hodges and Mr. Paul A. Connolly, of the Fort Bragg Criminal Investigation Division, as well as Robert H. Caverly, Special Agent, Federal Bureau of Investigation, Fayetteville, North Carolina, interviewed Captain MacDonald and they are available to the defense for interview."  And not until 17 July did we learn that the primary witness, who we were previously advised would be available, was absolutely forbidden, not as far as we ever learned ourselves of our volition, but by order of the United States Attorney, to talk to us.  I have no way of confirming or denying what Captain Somers says, that Agent Caverly has, of his own volition, decided, because first of all we know he'd been ordered, even if he wanted to, not to talk to us.  But secondly, we have never been able to confront him personally because of the government's inner position, to find out what his own position in this regard is.  But it is now too late to do anything about that.  As I said, since the government told us that Mr. Hodges would be available, there is no reason why there should have been delay since the 17th of July as today's date to find out when we can have them.  I want it further pointed out to the investigating officer, and we can corroborate by tape recordings made at the time, of the resistance to interview given by the criminal investigation division to counsel for the accused, on the occasion where we attempted to set up interviews.  We have been blocked by suggestions that they would not come until they had attorneys, that they would not come at specific times requested, but that does not seem to be important at this time.  We are in the middle of a hearing; since last Friday they have known we wanted Mr. Hodges.  We have a letter of 27 May saying we could have him whenever we needed him.  It seems that the government has effectively blocked counsel for the accused from doing the proper job in preparing to cross-examine Mr. Caverly.  For that reason, his testimony, again, sir, I respectfully renew, should be excluded from these proceedings.

COL ROCK:  Continue, counsel.

CPT SOMERS:  Sir, there is one contention of the defense which I cannot allow to go unchallenged on this record.  On the first day of this of this hearing, the 6th of July 1970, the issue of whether the defense would be permitted to interview Mr. Caverly was raised.  On the second or third day of the hearing, I do not remember which it was, I conveyed the information to the investigating officer, as well as to the defense, that he was not going to be available to the defense for interview.  At that time the defense asked that his testimony not be accepted, and the investigating officer ruled that it would be.  It is not correct that the defense has known only since the 17th that it would not be permitted to interview Mr. Caverly as is manifest from the record of this hearing.

COL ROCK:  The observation by both counsel on the matter of testimony of Mr. Caverly have been noted.  My original ruling, however, stands in effect, and Mr. Caverly will be permitted to testify in this hearing.

CPT SOMERS:  At this time, your honor, the government renews its request that Mr. Proctor of the United States Attorney's Office be permitted to be present in this hearing during the testimony of Mr. Caverly as a representative for Mr. Caverly, and as an associate to the government for the witness.

COL ROCK:  This request will be granted.  It is noted that I made a ruling previously that he would not be permitted, however, having reviewed the authority and direction by the appointing authority, and in light of the nature of the testimony of the witness, and in the fact that he is being represented by his own personal counsel and is not a member of the general public, this counsel will be permitted to sit with the witness.

MR. SEGAL:  May I first of all make my objection, Col Rock, to the change in procedure, because I think that it is not consistent with the policy that was laid down by the inquiry -- this inquiry in terms of who has the right to be present.  I understand that Agent Caverly is being called a witness in this proceeding, but the United States Attorney is not an attorney for the prosecution in this case.  He is representing the witness.  I do not know, for instance, whether or not the witness even is entitled under such a circumstance to have his attorney present but it would have to be at a request from him.  But I understand what the government requested here in this case is not that the Assistant United States Attorney come in as counsel for the witness, rather that he come in for the purpose of assisting the prosecution, and it seems to me that it is inconsistent with the prior position taken by this court.  It does not seem to me to be appropriate, and under these circumstances, to change the ruling now that we are in some two and a half weeks into this hearing, and I am very much troubled, sir, that we make such an exception.  I would, of course, request therefore that we, at this time, waive the prior ruling of the investigating officer and permit members of the public, including the press, and permit it to be here.  It seems to me once we have opened the door to this question of additional people coming in, people who we have no control over in terms of flow of information, that there is no longer any efficacious reason to prohibit the defendant from having his right to a public hearing.  Lastly, sir, if I may inquire of the investigating officer, as to the circumstance leading to the change in ruling; I would think it important that the record in this case reflect whether any communications have been sent to the investigating officer in this regard from any higher authority, so that it should be clearly noted as part of the total proceeding of this case, how it came that, as I say, some two and a half weeks into these hearings, we have made what I think is a very unusual exception, and one which does not seem to be justified, other that the fact, that the government would like it, without it having established any overwhelming necessity for it.

COL ROCK:  Your observations have been noted.  However, my most recent ruling continues to stand.  Your request that the general public and press to be admitted is rejected, and I have had occasion to review all of -- many of the records concerning the entire proceedings during the course of the last two and a half weeks, including the directions which I have received from -- originally received from the convening authority of this investigation, and I feel that my ruling is just and appropriate.  Is counsel for the government ready to continue?

CPT SOMERS:  Yes, sir.  At this time the government calls Mr. Robert H. Caverly.

(Special Agent Robert H. Caverly was called as a witness and was sworn.)

MR. SEGAL:  At this time, Colonel Rock, I request that counsel for the accused be given a copy of the statement that has previously been made by this witness to counsel for the government.  We have been assured previously, that before Mr. Caverly testified, in view of the unusual circumstances of his unavailability to us, that such a statement would be given to counsel.

CPT SOMERS:  At this time, I hand the defense counsel copies of what he's asking for.

MR. SEGAL:  May the record reflect that I have been given two photostatic copies of a -- three photostatic copies of a five page, single spaced typewritten statement, which purportedly is a statement given by Agent Caverly.  I ask at this time for an appropriate recess so that we may examine this before the direct testimony is taken from Mr. Caverly.

COL ROCK:  This hearing will recess an appropriate amount of time.  Counsel, what do you figure?  Fifteen minutes, half an hour?

MR. SEGAL:  May we have fifteen minutes?

COL ROCK:  Certainly, this court will be recessed.

(The hearing recessed at 0858 hours, 22 July 1970.)

(The hearing reopened at 0918 hours, 22 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties who were present during the recess are currently in the hearing room.  Proceed.

MR. SEGAL:  May I just make one correction on the record, Colonel Rock, please?  I was under the impression we'd been given three copies of a single statement by counsel for the government.  However, it appears that we were given three separate documents, and I want to reflect accurately that we were given a five page document, purporting to be a -- relating to an interview of Captain MacDonald on February 17th 1970.  We were given a two page statement purporting to be an interview of Captain MacDonald on February 18th, and we were similarly given a two page interview on February 19th.  We have those documents, have examined them, and are ready to proceed.

Questions by CPT SOMERS:
Q  State your name.
A  Robert H. Caverly.
Q  What is your residence?
A  Fayetteville, North Carolina.
Q  And your occupation?
A  Special Agent with the Federal Bureau of Investigation.
Q  Do you know the accused in this proceeding?
A  Yes, sir, I do.
Q  Can you point him out and state his name?
A  Captain Jeffrey R. MacDonald, sitting at the far end of the table.  (Witness pointed to the accused.)
Q  Mr. Caverly, did you have an occasion to speak to Captain MacDonald on the 17th of February of this year?
A  Yes, sir, I did.
Q  Where was that?
A  At Womack Army Hospital.
Q  Did you have an occasion to reduce the results of that interview to writing?
A  Yes, sir, I did.

CPT SOMERS:  At this time I request that this document be marked as a government exhibit.

COL ROCK:  Government exhibit 76, five page statement by FBI Agent Caverly.

Q  I show you Government Exhibit 76, Mr. Caverly, and I ask you if you can identify it?
A  Yes, sir, I can.
Q  What is it?
A  It's a transcribed statement of notes that I took on an interview with Captain MacDonald on February 17, 1970.
Q  Is that transcribed accurately?
A  Yes, sir it is.
Q  Now approximately what time of the day did you interview Captain MacDonald on 17 February?
A  2:25 pm.
Q  And did you speak to anyone regarding permission to see Captain MacDonald?
A  Yes, sir, I did.
Q  And can you tell us who this individual was or describe him to us?
A  The -- he was either a Major or a Lieutenant Colonel at Womack Army Hospital in the intensive care ward where Doctor MacDonald was being treated.  I cannot recall his name, but he was tall, heavy set.
Q  And what did you ask of him?
A  If Doctor MacDonald was in a condition that he could be interviewed.
Q  And the response was what?
A  Yes.

MR. SEGAL:  I object to that to the extent that it's meant to be an indication that Captain -- the condition.  I don't object to the extent that it only meant that he can indicate, yes, that he could go ahead and interview.

CPT SOMERS:  That's the only intention I have.

MR. SEGAL:  I suggest that it be put in that fashion.

CPT SOMERS:  I think the investigating officer understands.

CPT BEALE:  Colonel Rock understands it, as long as the question and the answer is made only in the limited fashion, that he was given permission to go in.

Q  Can you describe Captain MacDonald's condition at the time you saw him?
A  Yes, sir.  He was in a hospital bed.  He was in pajama bottoms, had no top.  He was -- he told me himself -- he was under sedation, however he agreed to be interviewed.  He appeared to be alert and was responsive.
Q  Did you have an occasion on the 18th of February 1970 to interview Captain MacDonald?
A  Yes, sir, I did.
Q  And did you reduce the results of that interview to writing?
A  Yes, sir, I did.

CPT SOMERS:  At this time I ask that this document be marked as a government exhibit.

COL ROCK:  Government Exhibit 77, Mr. Caverly's two page statement, apparently taken on 18 February.

(G-77 was shown to counsel for the accused.)

Q  At this time I hand you Government Exhibit 77 and ask you if you recognize it?
A  Yes, sir, I do.
Q  What is it?
A  It's a transcribed statement of an interview with Captain MacDonald on February 18th, 1970.
Q  Is that the statement that you took?
A  Yes, sir, it is.
Q  And is that exhibit -- does that exhibit accurately reflect that interview?
A  Yes, it does.
Q  And where did that interview take place?
A  At Womack Army Hospital.
Q  And what was the condition of Captain MacDonald at the time?
A  He was very coherent and stated to me personally that he was not under sedation.
Q  Did you have occasion to interview Captain MacDonald on the 19th of February 1970?
A  Yes, sir, I did.
Q  And did you reduce the results of that interview to writing?
A  Yes, sir, I did.

CPT SOMERS:  At this time I ask that this document be marked as a government exhibit.

COL ROCK:  Government Exhibit 78, Mr. Caverly's two page statement date February 19th.

(G-78 was shown to counsel for the accused.)

Q  I hand you Government Exhibit 78 and ask you if you recognize it?
A  Yes, sir, I do.
Q  What is it?
A  It's a transcript of an interview with Captain MacDonald on February 19th.
Q  Is that the interview that you had with him?
A  Yes, sir, it is.
Q  Does that exhibit accurately reflect the results of that interview?
A  Yes, sir, it does.
Q  And what was Captain MacDonald's condition at the time this was taken?
A  He was very alert and coherent.
Q  In these interviews was Captain MacDonald given an opportunity to affirm or disaffirm the substance of any prior statements?
A  Yes, sir, he was.
Q  In each case in what capacity was Captain --

MR. SEGAL:  I must object to that as being a statement of conclusion.  I have no idea of what was said or what was done, and I think it's improper to allow the agent to characterize affirmation or not.  I would prefer -- I would further state I have no idea how it was presented to Captain MacDonald, so that this investigation cannot determine what was given to him, or how the procedure was followed.  Therefore I would suggest that the answer be stricken, and if the government wants to pursue it, that they do it in the proper fashion, on the question and answer on the technique that was followed by the agent.

CPT BEALE:  Captain Somers, do you have anything to say about that?

CPT SOMERS:  I feel the question was legitimate and the answer also.

CPT BEALE:  Mr. Segal, the objection is sustained, and the last response will be stricken from the record.

Q  Mr. Caverly, in each case as to these exhibits, in what capacity was Captain MacDonald being interviewed?
A  He was interviewed as a victim of an assault case.
Q  Did you ever, at any specific time during any one of these interviews, ask Captain MacDonald or present Captain MacDonald with an opportunity to view his prior statements and affirm or disaffirm them?
A  Yes, sir, at the first --
Q  Would you give us a specific example of this, please?
A  During the first interview with Captain MacDonald I took handwritten notes.  At the end of a particular sequence, in order to get a logical sequence of events, I referred back to those notes and asked Captain MacDonald if the order was correct.
Q  Now you've made reference to handwritten notes.  Have those handwritten notes been transcribed?
A  There were transcribed into three statements that have been presented as evidence.
Q  And do those three statements represent the totality of those notes?
A  Yes, sir, they do.

CPT SOMERS:  Your witness.

Questions by MR. SEGAL:
Q  Mr. Caverly, where are the handwritten notes that were used to prepare these typewritten statements?
A  They have been destroyed in accordance with the policy of the Federal Bureau of Investigation after a statement has been transcribed.
Q  Can you tell me what policy you are referring to?

CPT SOMERS:  I object.  It is irrelevant.

MR. SEGAL:  May I say to the investigating officer that the government chose to elicit the fact that there were handwritten notes, and that the government purports to say that they -- these documents, which on their face are written in a narrative fashion in full sentences, in a logical order, are in fact the statement of Captain MacDonald.  I would say therefore the government has raised the question of asking this witness whether he copied all of it over.  We have a right to pursue whether he is correct in that regard, or whether there have been any additions or deletions, but in the absence of the notes, we have a right to pursue the question and under what circumstances were the notes destroyed, because if there is any question to be raised about this statement itself, it seems to me that the investigating officer ought to be aware or be able to consider the question of whether the availability of the original notes places in doubt any aspect of this total statement when questions are raised about it by counsel for the accuse.

CPT BEALE:  Mr. Segal, the witness has testified that he destroyed the notes, and as far as I am concerned it doesn't make any difference under what authority he did it.  If he did it, they are gone, and that's that.  

MR. SEGAL:  Well, I agree, but if they are gone under circumstances which perhaps would raise some question as to the procedures followed by the investigating officer, as was in fact the question, I think I raised here on cross-examination by me of Mr. Paulk about the destruction of his original notes.  I was allowed at that time to proceed on with more questions about the subject.  I don't think it will require all morning, but I think that if we were allowed to do it at that time, it seems to be at least as appropriate now.

CPT SOMERS:  If counsel wishes to examine into the contents of the notes, he can ask questions as to whether -- what the notes contained.  The policy under which the notes were destroyed is irrelevant, and we strongly object to that line of questioning.

CPT BEALE:  Your objection is sustained.

Q  Can you tell, Mr. Caverly, when the notes of the interview of February 17th were destroyed?
A  March the third.
Q  Would that be the date on which the typewritten statement was prepared by a typist of the Federal Bureau of Investigation?
A  Yes, sir, and that was the date that it was returned to me.
Q  Did you ever show Captain MacDonald the typewritten version of the statement of February 17th?
A  No, sir, I didn't.
Q  Did you ever show him the full statement taken on February 17th, either in its typewritten version or the handwritten version?
A  No, sir.
Q  When you were making handwritten notes of your interview on February 17th, were you writing down his exact words, or were you, as you appear to be here, characterizing or paraphrasing what he was saying?
A  I took down the exact words Captain MacDonald told me.
Q  Is there some reason why the interview was not recorded in quotation marks, but rather appears to be your version of what Captain MacDonald said?
A  There are parts of that statement in quotes.
Q  I would agree that in fact there are a number of sentences where you placed the words in quotes.  May I ask whether that was done to indicate whether those were the exact words given to you by Captain MacDonald?
A  In those particular instances they are.
Q  And you made a point of noting those verbatim as he stated to you while he was in the hospital?
A  Yes, sir.
Q  And is it fair to say though that in other parts where you did not put the words in quotes that you are purporting to say that those are the verbatim transcription of the words spoken to you by Captain MacDonald?
A  That statement is a narrative.
Q  Right, and the narrative, as a matter of fact was constructed by you because Captain MacDonald was unable to give you a coherently narrative?
A  He was emotionally upset, yes, sir.
Q  That was not the question I ask you, sir.  Isn't it a matter of fact that Captain MacDonald on February 17th was unable to give you a coherent narrative of what happened to him early that morning?
A  Yes, sir, that's true.
Q  And as a matter of fact you thought that that aspect of his condition was sufficiently important to make a notation of it in the statement itself?
A  Yes, sir, because he jumped out of order, trying to get a sequence of events.  As it happened he jumped -- would skip from one part and go to another part.
Q  As a matter of fact is that the only thing that seemed unusual to you about Captain MacDonald's condition during the course of the interview?
A  I don't understand your question.
Q  Well, you testified on direct examination by the counsel for the government, that aside from the clothing that you noted, you observed that he, or Captain MacDonald told you he was under sedation, but he would try to tell you what he could, and that he appeared alert and responsive.  You did tell us that a few minutes ago?
A  Yes, sir.
Q  Did you make any other observations about Captain MacDonald's condition other than the fact that he had bandages on or something to that effect?
A  I didn't notice anything.  The only thing I do recall was I was sitting on the left side of the bed, up toward Captain MacDonald's head and he requested I move to the bottom of the bed, because he did not have his glasses on.
Q  Would it refresh your recollection as to what your opinion was of his condition, if I directed your attention to the next to the last line of the first paragraph of the interview of February 17th?
A  Right.
Q  And having observed that part of the statement, what was your impression of Captain MacDonald's condition at the time you spoke to him?
A  He told me he was under sedation and was emotionally upset over the recent events.
Q  And you did not disagree with that opinion, did you, that he was emotionally upset?
A  No, sir, I didn't.
Q  As a matter of fact, did you not, in the interview itself, state your own opinion that during the interview Captain MacDonald was emotionally upset and at the time was unable to follow a logical sequence of events?
A  Yes, sir, I did.
Q  And was the purpose of putting that in this statement to indicate -- trying to help him structure the events as given to you, or structure the time sequence of events as given to you?
A  Yes, sir, because he would jump from one event to another and I was trying to get a logical sequence of events.
Q  Did you make a tape recording of any of these interviews while it was being given?
A  No, sir, I did not.
Q  Am I correct in assuming that the only record made of the interview were the handwritten notes which were then destroyed at the time the typewritten version was prepared by a typist in your office?
A  Right, sir.  I transcribed these notes in longhand, returned to my office, and on the first interviewed -- interview on February 17th they were transcribed on the Dictaphone, forwarded to my headquarters in Charlotte where it was transcribed by a stenographer, and the typed statement was returned to me.
Q  Was there anyone else with you at the time of the interview of February 17th?
A  Yes, sir.
Q  Can you tell us who that was, please?
A  Investigator John W. Hodges, Criminal Investigation Division, Fort Bragg.
Q  And was anyone else present besides yourself and Mr. Hodges at the time of the interview was taken?
A  At one time a physician, doctor, at the hospital came into the room that Captain MacDonald was being interviewed because of his emotional upset.  He started crying and we requested a doctor to come in and look at him.
Q  And what did the doctor do, if anything?
A  He didn't give him any medication.  He just settled down, Doctor MacDonald settled down.
Q  What are -- were you aware of what medication Captain MacDonald had been given prior to your interview?
A  No, sir, I was not.
Q  Did Mr. Hodges participate in the questions of Captain MacDonald that ultimately resulted in his statement of February 17th?
A  Yes, sir, he did.
Q  And the answers that are included in this statement of February 17th are the answers given to the questions put by both you and Mr. Hodges?
A  Basically they are questions put by me.  Mr. Hodges had participated in the investigation earlier; as I stated previously I commenced the interview at 2:25 pm on February 17th.
Q  At what time did the interview end, by the way?
A  Ten minutes after four.
Q  Now is it fair to say that you did most of the questioning in connection with this first interview?
A  Yes, sir, I did.
Q  And that Mr. Hodges only asked some supplementary questions from time to time based upon some details that he may have known?
A  Yes, sir.
Q  To your knowledge, did Mr. Hodges make any notes during the interview of Captain MacDonald while you were there?
A  I believe he did.
Q  Did Mr. Hodges have a recording device, a tape recorder?
A  No, sir, he did not.
Q  To your knowledge, had Mr. Hodges interviewed Captain MacDonald prior to your coming to interview him on February 17th?
A  Not to my knowledge.
Q  As far as you know you were the first -- you and Mr. Hodges were the first investigators to attempt to take a reasonable full statement of Captain MacDonald on the sequence of events taken place earlier that morning?
A  Yes, sir.
Q  Now the interview of the next two days, the 18th and 19th, were they considerably shorter in terms of time that it took to take them?
A  Yes, sir.
Q  And did that appear because Captain MacDonald seemed to be in better physical condition on the 18th and 19th?
A  Yes, sir, he was.
Q  How long did it take to obtain the interview of February 18th?
A  Approximately one hour.
Q  And was there anyone else present with you on that date?
A  Yes, sir, Mr. Hodges was.
Q  Was there any other investigators assigned to you and Mr. Hodges on the 18th?
A  No, sir.
Q  And did you again conduct the bulk of the questioning of Captain MacDonald?
A  Yes, sir, I did.
Q  Did Mr. Hodges ask any questions?
A  Yes, sir.
Q  He did?
A  He did.
Q  Did you both make handwritten notes on those interviews?
A  Yes, sir.
Q  Did either one of you have a recording device at this time?
A  No, sir, we did not.
Q  On the interview of the 19th, how long did it take to take that interview?
A  Approximately forty-five minutes.
Q  And again, were you accompanied by anyone at that time?
A  Yes, sir, I was accompanied by another Federal Bureau of Investigation, Robert F. Williams, and Investigator Hodges of the CID.
Q  And who conducted the questioning of Captain MacDonald on the 19th?
A  I had charge of the questioning, and at this time Agent Williams also injected a few questions.
Q  Did Mr. Hodges, to your recollection, ask any questions of Captain MacDonald on that interview?
A  I believe he did ask a couple.
Q  Who made the written notations as far as the Federal Bureau of Investigation was concerned?
A  I did.
Q  And did Mr. Hodges make any notations to your knowledge on the 19th?
A  I believe he did.
Q  Did Agent Williams make any notations?
A  No, sir, he did not.
Q  You were the only person recording that interview on the 19th as far as the FBI was concerned?
A  Yes, sir.
Q  Did any one of the three of you on the 19th have a recording device?
A  No, sir, we did not.
Q  Now on either the 18th or the 19th -- strike that.  Did you at any time show Captain MacDonald the typed version of these three statements for his examination and indication of correctness or incorrectness?
A  No, sir.
Q  Was there any particular reason why you did not show him these statements to verify the information?
A  No particular reason.
Q  Did you ever ask Captain MacDonald to give a formal signed statement taken verbatim from him?
A  No, sir, I did not.
Q  Was there again any particular reason why he was not asked for a verbatim statement signed by himself?
A  No particular reason.
Q  At any time did he indicate that he would not give such a statement, or unwilling to give a verbatim signed statement?
A  No, sir, he didn't indicate either way, whether he was or was not willing.
Q  Did at any time, he indicate any hesitancy or reluctances to any question you put to him on the 17th, 18th or 19th?
A  No, sir, he didn't.
Q  May I ask, when did your participation in this investigation end, on what date, the approximate date?
A  On the interview with Captain MacDonald on February 19th.
Q  Beyond the interviews, that is when did your participation of the investigation of the killing in the MacDonald house end?

CPT SOMERS:  I object.  It's irrelevant.  This witness has testified only as to these three statements.

CPT BEALE:  The objection is sustained.

MR. SEGAL:  Well, may I say that if the ruling is based upon the position that the government -- I think what the government is saying -- that the questions are beyond the scope of the direct examination, we may then be in a position to unfortunately ask Agent Caverly, so that we may call him as a defense witness.  I think the procedure we propose, to ask him a few brief questions about the investigation, and then as far as we are concerned, he can probably be excused.  I would not like to impose upon a man who is about to, I think, go off on a vacation, but on the other hand, in view of the seriousness of the charges, I think the government's insistence upon waiting until the defense case begins to call this witness, may be somewhat inconvenient and perhaps unbalanced, and we want to be fair to the witness as possible.

CPT SOMERS:  The defense does not have the power or the right under the Federal Regulation to call this man as its witness.  He is here to testify as to the very specific matter.  He is available for cross-examination on that matter, and the government objects to the question which has already been ruled on.

MR. SEGAL:  I cannot honestly believe that the government takes the position that because the agent works for the Federal Bureau of Investigation, that once he comes to court and gives information, that the only information that this inquiry may receive is what the government chooses to let out, and that other factors pertaining to the truth or the falsity, the correctness of the investigation, the appropriateness of the findings made are to be hidden from this investigating officer.  It is inconsistent and I would call the court's attention to the decision in Commonwealth versus Smith, or Smith versus the Commonwealth of Pennsylvania, which went to the Supreme Court of the United States, at which time the FBI had taken the position that they would not make statements of interviews available.  The Supreme Court says it is absurd to suggest that once you bring a witness into court including FBI agents, and you open up their participation, that one should only be allowed to hear what the chooses to release.  It seems to me once we've introduced these matter, we have only a few brief questions to ask in regard to when the participation of the FBI end, and what particular circumstances attended to the ending of their involvement in this case.  It seems to me those are reasonable questions for the investigating officer to seek the answers to, and I cannot understand the suggestion that none of us are allowed to get even that minimal information simply because the government didn't choose to ask on direct examination.  

CPT SOMERS:  Colonel, the government has two or three responses to this.  First, this is not a court.  It is a hearing without the subpoena power.  Secondly, even were it court it would be subject to the Federal Regulations, which I have cited before in 28 CFR, Section 16.11 through 16.14.  The correctness of these rulings can be discovered by reading the case of the United States ex rel Touhy versus Ragen in 340 U.S.  462.  Furthermore the government is under a positive burden imposed by the Supreme Court of the United States in Brady versus Maryland to provide the defense with any information which may be favorable to him, which it has in its possession, which it has already done, and therefore the position of the defense is without merit.

CPT BEALE:  The objection is still sustained.  You can continue with the cross-examination of this witness.

Q  Agent Caverly, did you have an occasion to mention the interviews with Captain MacDonald with Miss Carolyn Landen, a telephone operator for the telephone company covering Fayetteville, North Carolina?

CPT SOMERS:  I object.  It is irrelevant.

MR. SEGAL:  It pertains to these interviews, sir, and we are now going on the subject of persons with whom the interviews may or may not have been discussed.

CPT SOMERS:  The witness has testified as to the correctness of his statement.  He has testified as to how they were taken.  Now, whether he spoke to someone else about them is irrelevant.

MR. SEGAL:  If, in fact, the witness says this is not necessarily the circumstances, but if the witness made other representations to other persons as to what Captain MacDonald said, other than was contained in these statements, it raises some questions as to which versions may or may not be correct.  We are at least entitled to find out whether he discussed Captain MacDonald's statements with certain other individuals.

CPT SOMERS:  At this time, your honor, the government withdraws its objection.

A  I did not discuss this with a telephone operator.  
Q  When you say -- do you know Mr. Davis of the Southern Bell Telephone Company, the manager of the local office here in Fayetteville?
A  No, sir, I don't.
Q  Did you ever discuss -- do you know Miss Landen?
A  No, I don't.
Q  You never interviewed Miss Landen either?
A  No, I did not.
Q  Do you know whether Agent Crawford F. Williams, who participated in the interview of February 19th, interviewed either Mr. Davis or Miss Landen of the telephone company?
A  No, sir, I don't.
Q  You don't know whether he interviewed them?
A  I don't know whether he interviewed them.
Q  Just in an attempt to clarify this, do you know whether any other agent assigned to this investigation who may have included in their work the interview of those two people?

CPT SOMERS:  I object to that.  It is irrelevant.

CPT BEALE:  The objection is sustained.

Q  Did you have occasion to interview other people to try and seek verification of the information given to you by Captain MacDonald in these written statements?

CPT SOMERS:  I object.  It's irrelevant.

CPT BEALE:  The objection is overruled.

Q  Mr. Caverly, did you have in fact occasion to interview other people to verify the correctness given -- the information given to you by Captain MacDonald in these statements?
A  I did not.  My participation in this investigation was limited to the interviews with Captain MacDonald.
Q  You were the agent then, I gather, in charge of the FBI participation in the investigation of the killing at the MacDonald case?
A  No, sir, I am a resident agent in Fayetteville, North Carolina.
Q  May I ask who the agent was in charge of this particular investigation?

CPT SOMERS:  Object.  It's irrelevant.

MR. SEGAL:  I cannot conceive of what is more important than to find who knows the facts of this case.  What can the government possibly be afraid of to let us know who the agent was in charge of the investigation?  If that causes the government's case to tremble then they have less of a case then they think they do.

CPT BEALE:  Captain Somers, your objection is overruled.

Q  Now, may I have the name of the investigating agent, the agent in charge of the investigation?
A  This investigation was supervised under the direction of Robert M. Murphy, Special Agent in charge of the Charlotte Division of the Federal Bureau of Investigation.
Q  Based upon your interview with Captain MacDonald, were you able to determine whether Captain MacDonald had any motive to kill his own wife and two children?

CPT SOMERS:  I object to that.  That's pure conclusion which is certainly not admissible before this forum.

MR. SEGAL:  All we asked him, sir, is whether he knows, based upon his interview, to establish a motive for Captain MacDonald having murdered his wife and children.

CPT SOMERS:  He's asking this agent to decide what a motive might be and that is certainly inadmissible.

CPT BEALE:  Your objection is sustained, Captain Somers.

MR. SEGAL:  I have nothing further of this witness.

CPT BEALE:  Redirect?

Questions by CPT SOMERS:
Q  What was the apparent emotional condition of Captain MacDonald on the 18th when you interviewed him?
A  He was not -- he told me himself that he was not under sedation -- under sedation, and would try to be more coherent.  He was very alert and did appear to be in better physical health on the 18th than he did on the 17th.
Q  And what was his apparent condition on the 19th?
A  He was much better -- much more alert and responsive.

CPT SOMERS:  No further questions.

Questions by MR. SEGAL:

Q  Do I gather from your answer, Agent Caverly that you thought on the 19th he was more alert than he was on the 18th?
A  Yes, sir, and more alert than he was on the 17th.
Q  That was my question.  Then I gather on the 18th you thought he was more alert than he was on the 17th?
A  Yes, sir.
Q  On the 17th you concluded that he was in rather poor emotional condition.  Is that right?  On the 17th you found him in a very poor emotional condition?
A  Yes, sir, because he became upset during the interview.
Q  But that was not the only observation you made about his condition at that, was it?
A  I said he was emotionally upset.
Q  And he was not coherent?
A  And not coherent.
Q  And he was better on the 18th than on the 17th?
A  Yes, sir.
Q  But he did not appear to you to -- to be a totally well person both emotionally and physically on the 18th?
A  Sir, I'm not a doctor.  I couldn't ask that question.
Q  Well, you are not suggesting, based upon your observations that he was a totally well man emotionally and physically on the 18th?
A  He was much more alert -- on the 18th.
Q  And much more coherent on the 18th.  If I may ask you, is it not fair to say that you saw his condition getting better between the 17th and the 18th and between the 18th and the 19th?
A  As far as his emotions, right.
Q  Yes, and if that is the sequence of his appearance to you, it is obvious that on the 18th he was not as emotionally as well as he was on the 19th?
A  Yes, sir, I guess your -- he was much better on the 19th than he was on the 18th.
Q  And much better on the 19th than he was on the 17th?
A  Much more coherent.

MR. SEGAL:  Thank you, that's all.

CPT SOMERS:  I do have one more question.

Questions by CPT SOMERS:
Q  With respect to coherent, what are you referring to?  Are you referring to ability to the order of his testimony or --

MR. SEGAL:  Well, that's --

Q  -- Responding intelligently or what?

MR. SEGAL:  I object to the leading nature of the question suggesting whether the elements of the consideration the agent to have had when arriving at his opinion.  We are having it put in his mouth.  It seems to be direct rather than cross.

CPT BEALE:  Counsel, do ask the question in the fashion that the agent may respond to it.

Q  On the 18th, with respect to coherent, how do you define the term coherent?

MR. SEGAL:  That's objected to.  His definition is not important.  It is what his observations were I think.

CPT BEALE:  I think that's about what we are to get had you not interposed an objection, so we will try it again.  You may answer it, Mr. Caverly.

A  The question was?
Q  How do you define the coherent?  What do you mean as to coherent?   In your observations on the 18th.

MR. SEGAL:  May I say that I assume the question is amended to ask Captain MacDonald's condition rather than a dictionary definition of the word.  That's what I am trying to have the question prefaced upon rather than having some generalized definition.  I assume you are talking to the agent -- or have it made clear to him that we are talking about how does he define coherent in describing Captain MacDonald's condition.

CPT BEALE:  That's correct, Mr. Caverly.  It can be done in those terms.

A  I used the term coherent, because on the interview of the 17th, Captain MacDonald jumped.  He skipped around from one event to the other.  On the interview of the 18th, and the interview of the 19th, he comes out in more logical sense and sequence of events.

CPT SOMERS:  No further questions.

MR. SEGAL:  I have nothing further.

COL ROCK:  Mr. Caverly, you are requested not to discuss your testimony with any person other than either counsel, or Mr. Proctor, I request that you will observe the same conditions.  You gentlemen are excused.  Thank you.

(The witness and Mr. Proctor departed the hearing room.)

CPT SOMERS:  If I may, sir, since I failed to do it, I should state for the record that during the testimony of Mr. Caverly, Mr. James Proctor from the US Attorney's Officer has been present in the hearing room.  At this time, sir, I suggest a tenminute recess.

COL ROCK:  Will the next witness be available then?

CPT SOMERS:  Yes, sir.

COL ROCK:  During the recess, attempt to determine the status of the query to Third Army and CONARC relative to the counsel for the accused's request.

CPT SOMERS:  That is one of my reasons.

COL ROCK:  We will recess.

(The hearing recessed at 1003 hours, 22 July 1970.)
Webmaster note: 
The original stenographer's misspelling of Connelly was corrected to Connolly in this transcript.